PGO Coalition asks cartel watchdog to look at VWS

Stonewalling is the application being developed by VWS under the name My Health Overview (MGO). It is being developed by the same team that worked on the CoronaMelder app several years ago.

Double cap

According to VWS, by developing MGO, the ministry is giving shape to its directive role. "VWS sees MGO as an important step towards data availability for citizens, as described in the National Vision and Strategy for the Health Information System and which includes a full position for citizens," the ministry stated in response to questions from Dutch Health Hub.

Market party?

According to the providers, VWS itself should not develop software at all and there is improper competition. On LinkedIn, Esther van Noort, Principal CEO of Curavista, concisely summarizes the feeling among PBM providers. "Quite extraordinary that at this very moment the Ministry of Health, Welfare and Sport itself is setting up yet another #PGO (MGO) in a market with several well-functioning PBMs. How does this fit in with the responsible use of public funds? The government as director, procurer and market party?"

Market and Government Act

To get answers as to whether the government is overstepping its bounds, the PGO Coalition has knocked on the doors of the Consumer & Market Authority (ACM) and the Standing Parliamentary Committee on Public Health. MedMij, which develops and manages the agreement system behind the PGOs, also wants to know what the possible consequences of VWS's actions are. For that reason, MedMij has asked lawyer Theo Hooghiemstra for advice. In his opinion, Hooghiemstra argues that the actions of VWS raise questions under the Market and Government Act. "Isn't the government sitting on the chair of the market here?" said Hooghiemstra.

"We think we are supporting rather than disrupting the market," VWS responds. "By developing open source and making the building blocks of MGO available to MedMij-labeled PBM vendors, we are playing to their capacity to develop distinctive functionality for their clients."

AVG basis

It is possible that the development of MGO not only clashes with the Market and Government Act, but also with the General Data Protection Regulation (AVG). With its own MGO, VWS assumes the role of data controller, which is subject to strict legal rules. Given its position of power in relation to citizens, these are, if possible, even more stringent for the government than for private data processors. Simply asking the individual citizen's permission for the processing of health data is definitely not enough to speak of a legitimate AVG basis, according to Hooghiemstra.

Questions

Remains adaptation of the law. This is a time-consuming process that, before the parliament can consider it, first passes the Personal Data Authority (AP) and the Council of State. "A lot of questions will have to be answered, such as: what is the need for MGO? And: what is the need for a government basic PBM in addition to the private PBMs, for which a tender is now underway?" said Hooghiemstra. "This is a trajectory that takes several years and whose outcome (partly because of political uncertainty) is not certain in advance. I'm not saying it can't be done, but you don't have it settled in a back afternoon."

Mandatory provision

VWS says it is aware of the need for a proper legal basis. The ministry notes that, in fact, it has no choice. "The new regulation for the European Health Data Space (EHDS) obliges member states to set up a National Health Access Point for its citizens. With this, the question is no longer: is the government allowed to do this, but it becomes an obligation to arrange this. MGO and developing a trusted authentication service fits well with this obligation in our view."

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